Peake

The plaintiff seeks injunctive relief and damages against the defendants for the alleged wrongful interference with a water right to which plaintiff claims to be entitled and for damage already sustained by the plaintiff by reason of such interference.

The dispute between the parties arises over the right to the use of the waters of North Elder Creek, in Tehama County. Said creek has its source in township 25 north, range 8 west, Mount Diablo base and meridian, and flows across defendants’ land in section 21 to the lands of plaintiff in section 20. Plaintiff claims through an appropriation, made by one of his testator’s predecessors in interest, in 1860, of three hundred inches of water measured under a four-inch pressure. Defendants’ claim is based upon the fact that, in 1876, their ancestor, O. W. Harris, a homestead entryman, appropriated water from said creek for use on rthe lands now owned by defendants which are riparian to said stream, and that since that time he and they have made beneficial use of the water “to the extent of one-half of said creek during the summer months when the water is low, and at other times not less than one hundred miner’s inches of water.”

The…

The petition for rehearing in this court is denied. But in denying the same we think it is necessary to make a statement of the reasons therefor.

The plaintiff’s predecessors and the defendants’ predecessors in interest each owned a quarter-section of land having a common north and south boundary, plaintiff’s lying east and defendants’ west of the common line. The stream in controversy ran through both tracts from the west toward the east, first entering the defendants’ land and then through the plaintiff’s land. The result is that the plaintiff is the lower riparian proprietor and the defendants the upper- riparian proprietors.

It appears from the findings that the plaintiff and his predecessors have diverted water from the stream and used it on said quarter-section of land ever since the year 1860, claiming the right under an alleged appropriation and use, and that the defendants and their predecessors in interest have used the waters of the stream on their western quarter-section ever since the year 1876. The court below found that by virtue of such use on the lower riparian tract the plaintiff had acquired a right thereto as against the claims of the defendants as owner of…